Written by Michael G. Glass
Pressure ulcers are among the most common injuries suffered by nursing home residents.[i] They can be painful and debilitating, and are horrifying to the resident’s family and to jurors alike. Practitioners should have a basic understanding of the law protecting nursing home residents who develop bed sores and be able to make a preliminary determination as to whether a bed sore case should be investigated further.
Nursing home residents are protected by a complex web of federal and state regulations which govern almost every aspect of nursing home care.[ii] On the federal level, in 1987, the U.S. Congress enacted a far reaching set of reforms to nursing home regulations to improve nursing home quality.[iii]The legislation expanded state and federal responsibilities for nursing home supervision and increased sanctions for noncompliance. The stated purpose of the reforms was to ensure that each nursing home resident receives care which enables the resident to “attain the highest practical physical, mental and psychosocial well-being.”[iv]The regulations, collected at 42 C.F.R. Part 483, set forth detailed standards for resident’s rights, the quality of resident’s care, proper maintenance of the facility and other facility practices.[v]
States license nursing homes and also have the authority to enact their own set of nursing home regulations to complement federal oversight.[vi] The statutory authority of the New York State Commissioner of Health to regulate nursing homes is set forth in Public Health Law Section 2803. Public Health Law Section 2803-C(3)(e) expressly states that each nursing home patient has the right to adequate and appropriate medical care. Detailed New York State regulations governing the quality of care in nursing homes are set forth in 10 N.Y.C.R.R. Part 415. The New York regulations largely track their federal counterpart, although they are not identical. Both sets of regulations must be referenced in any nursing home neglect case.
New York also protects nursing home residents with a private statutory right of action under Public Health Law Section 2801-d.[vii] PHL 2801-d is perhaps the single most powerful tool in the practitioner’s arsenal. PHL 2801-d creates a private right of action for the nursing home resident who suffers any deprivation of a right or benefit conferred by statute, regulation or the nursing home contract.[viii] A prima facie PHL 2801-d case is made out when the resident proves the nursing home violated any one of the myriad state or federal regulations protecting residents and demonstrates that the violation caused the resident’s injury. Under the statute, the burden then shifts to the nursing home to prove that “the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury … to the patient.”[ix] A prima facie case for the resident under PHL 2801-d can be easier to prove than a traditional negligence claim (in which the plaintiff must establish the facility acted unreasonably), or a medical malpractice claim (in which the plaintiff must establish departures from accepted standards of care). Significantly, PHL 2801-d also provides for minimum statutory damages, punitive damages when willful or reckless disregard of the resident’s rights can be proved and, in the discretion of the court, attorney fees to the prevailing resident’s attorney.[x]
It is against this backdrop that the pressure sore case must be evaluated. Pressure sores are prevalent in nursing homes because elderly and infirmed residents are often immobile, bed bound or chair bound. A pressure sore develops because of pressure and/or friction over an area of skin, resulting in decreased blood flow to that area.[xi]Affected areas are typically the sacrum, coccyx, feet and heels. If the pressure is not relieved, the area develops into an open sore and death of tissue ensues. As the sore widens and deepens, layers of the skin can be eviscerated, exposing the bone below. Seventy percent of pressure sores occur in patients over the age of 70 and ninety-five percent of pressure sores develop on the lower body.[xii]
Pressure sores are graded or staged according to their severity. Stage I is intact skin with a nonblachable redness in a localized area, usually over a bony prominence. Stage II is a shallow open sore where the skin has been broken. Stage III is when the pressure sore has advance to the point that there is full thickness tissue loss so that the fat underlying the skin is exposed. Stage IV is when the sore is so deep that underlying bone, tendon or muscle is exposed. A pressure sore may also be “unstageable,” because the base of the ulcer is covered by slough or eschar making accurate staging of the depth difficult.[xiii] Most pressure sore lawsuits involve Stage III or IV pressure sores. Pressure sores in the lower extremities can cause gangrene resulting in amputation. Open bed sores anywhere on the body can become the site of an infection and progress to sepsis, and ultimately cause the death of the patient.
Both federal and state regulations speak to the issue of pressure ulcers.[xiv] Both provide that the resident has the right to be free of pressure sores which are medically preventable. Specifically, the regulations provide that the nursing home must ensure that the resident does not develop pressure sores unless they are “clinically unavoidable.”[xv] If the resident comes into the nursing home with an existing pressure sore, the facility is charged with the responsibility of providing the necessary services and treatments to promote healing, prevent infection and prevent new sores from developing.[xvi]
The issue of “clinical unavoidability” is central to the prosecution and defense of the pressure sore claim. The focus is on whether the facility appropriately assessed the resident’s risk of developing a pressure sore and created a plan of care to address that risk. Often the nursing home chart demonstrates the risk was identified and a plan of care was developed. Then, the battleground shifts to the issue of whether the interventions and precautions ordered were actually implemented by the facility staff. The answers to these questions are revealed by a detailed analysis of the nursing home chart.
In addition to immobility, certain medical conditions can enhance the resident’s risk of developing pressure sores, and when they develop, make them more challenging to heal. Those conditions include urinary and fecal incontinence, peripheral vascular disease, malnutrition, diabetes, end stage renal disease, gastrointestinal disorders and malabsorption disorders, among others.[xvii] Some medical conditions are believed to impede or prevent healing of pressure ulcers: metastatic cancer, cachexia, multiple organ failure, sarcopenia, severe vascular compromise and terminal illness.[xviii] Resident’s rights advocates argue that the presence of risk factors put the facility on notice of the need for aggressive preventative measures. Nursing home defense counsel, on the other hand, argue that the presence of multiple risk factors make the development of the pressure sore clinically unavoidable.
Typical interventions to prevent the development of a pressure sore for an at risk resident include routine turning and positioning to off load pressure points, maintaining adequate nutrition and hydration, employing pressure relief devices such as a pressure relief mattress or pads or heel protectors, and providing appropriate skin cleaning and skin care.[xix] Many of these interventions are provided by the certified nurse assistants, who work under the supervision of the facility nurses. The facility should maintain some form of a CNA accountability record which documents on each shift whether the interventions required by the Plan of Care are actually being performed. Pressure sore litigation is often waged in and around the CNA accountability record. Large gaps in documenting daily care, such as the turning and positioning of the immobile resident, provide plaintiffs’ experts with a ready explanation as to why the pressure sore developed or failed to heal. Conversely, a well -documented chart of daily interventions support the facility’s argument of “clinical unavoidability.”
Sometimes the nursing home chart has missing parts, or worse, material alterations between the chart obtained before the litigation and the chart produced during the litigation.[xx] On an alarming number of occasions we have discovered fabrications in the notes, including the addition of turning and positioning entries which were not recorded in the earlier version of the chart, and even the administration of medications to a resident a day after his death.
The most damning pieces of evidence in the pressure ulcer case are the photographs of the ulcers themselves. Graphic photographs of the deep sores exposing, for example, the vertebrae in the sacrum are a compelling adjunct to the resident’s family’s testimony concerning pain and suffering. In every pressure sore case the family should be instructed to take multiple photographs of the ulcer, or a professional photographer should be dispatched to the hospital or facility for that purpose. If the resident has died, funeral directors will often permit a photographer to document the sores while the body is being prepared. Unfortunately, autopsies are rarely performed on elderly residents who expire in the hospital or nursing home from presumed natural causes. The nursing home and hospital charts should be scoured for any evidence that the facility took photographs to document wound care progression, and careful note should be made of any differences in the description of the pressure sore between the nursing home and the subsequent treating hospital. Once a pressure ulcer is identified, it should be measured by location, size and depth.[xxi] It is not unusual to discover that a pressure sore is described by the nursing home staff as a Stage III on the day the resident is transferred to the hospital for definitive care, and a few hours later described as a Stage IV by the hospital emergency room personnel.
As the preamble to the New York regulations reminds us, the infirmed elderly are among the most vulnerable in the population.[xxii] A large percentage of that population is at risk for developing pressure sores. Unless clinically unavoidable, pressure sores should not occur in a skilled nursing facility. Litigation of bed sore cases is one method of promoting enforcement of existing standards of care and improving quality of care throughout the industry. The practitioner would be well advised to seriously consider obtaining the nursing home chart when the family complains that a loved one has developed serious bed sores in the nursing home.
[i] Depending on the study consulted, the incidence of pressure ulcers in the long-term care setting range from a low of 2.2% to a high of 23.9%. Janet Cuddigan et al., Pressure Ulcers in America, Prevalence, Incidence and Implications for the Future, 14 J. for Prevention & Healing 208 (2001) (an executive Summary of the National Pressure Ulcer Advisory Panel).[ii] See Belinda Dodds-Marshall, et al., The Ever Expanding Claim: Causes of Action Against Nursing Homes Amendments to New York Public Health Law 2801-d, The Risk Mgmt. Q., 13, 15 (Summer 2010)available at https://www.ahrmny.com/downloads/RMQ-Summer_2010.pdf (“it is now recognized that skilled nursing facilities and the nuclear power industry are the most heavily regulated in the Country”).[iii]See 42 U.S.C. §1396r (1996)(amended 2011) and its implementing regulations at 42 C.F.R. §§483.1- 483.480[iv]42 U.S.C. §1395i-3(b)(2) (1997)(amended 2011); 42 U.S.C. §1396r(b)(2) (1996)(amended 2011); 42 C.F.R. §483.25 (2005)[v]See, e.g., 42 C.F.R. §§483.10, 483.13, 483.15, 483.25, 483.30, 483.750, among other sections
[vi] Federal Regulations and Nursing Homes, Texas Nursing Home Library, https://txnursinghomes.boomja.com/index.php?ITEM=94824 (last visited June 8, 2011)
[vii]N.Y. Pub. Health Law §2801-d (McKinney, 1975)(amended 2009). One of the legislative motivations for enacting PHL §2801-d was to provide “a supplemental mechanism for the enforcement of existing standards of care.” See New York State Moreland Act Commission on Nursing Homes and Residential Facilities, Assessment and Placement: Anything Goes, pp. 4-5 (March 1976). The Moreland Commission was created by Governor Carey to investigate nursing home abuse and recommend regulatory reforms. See 1975 N.Y. Sess. Laws 1764 (McKinney).
[viii] Applicable statutes include 42 U.S.C. 1396r and New York PHL 2803-c. Relevant regulations are found in 42 C.F.R. Part 483 and 10 N.Y.C.R.R. Part 415. In addition, the contract between the nursing home and the resident may detail resident rights. See Morisette v. Terrence Cardinal Cooke Health Care Center, 797 N.Y.S.2d. 856, 859 (N.Y. Sup. Ct. 2005) (referencing a nursing home patient’s right to appropriate medical and nursing care pursuant to her contract).
[ix] N.Y. Pub. Health Law §2801-d(1) (McKinney, 1975)(amended 2009).
[x]Id. §2801-d(1), (6)
[xi]American Medical Directors Association, Pressure Ulcers in the Long-Term Care Setting, Clinical Practice Guideline 1 (2008)
[xii]Id. at 2
[xiii]Id. at 8.
[xiv]42 C.F.R. §483.25(c) (2005); 10 N.Y.C.R.R. §415.12 (1991).
[xv] Id. According to the interpretive guidelines issued by CMS to nursing home surveyors, a pressure ulcer is avoidable when a pressure ulcer develops and the facility did not do one or more of the following: evaluate the resident and the resident’s risk factors, define and implement interventions, monitor and evaluate the impact of interventions, or revise the interventions as appropriate. CMS, Guidance to Surveyors, 42 C.F.R. 483.25(c) at F Tag 314.
[xvi] 42 C.F.R. §483.25(c)(2) (2005); 10 N.Y.C.R.R. §415.12(c) (1991)
[xvii] See, e.g., American Medical Directors Association, supra note 11, at 4; CMS, Guidance to Surveyors, 42 C.F.R. 483.25 at F Tag 314.
[xviii] American Medical Directors Association, supra note 11, at 10.
[xix] American Medical Directors Association, supra note 11, at 10.
[xx]Pursuant to 42 C.F.R. 483.10(b)(2), the resident or his legal representative has the right to access all records pertaining to the resident. See also 10 N.Y.C.R.R. §§415.22(e), 415.3(c)(1)(iv) (1991).
[xxi]American Medical Directors Association, supra note 11, at 10-11.
[xxii] 10 N.Y.C.R.R. §415.1(a)(1) (1991). “For the vast majority of residents, the residential health care facility is their last home. A license to operate a nursing home carries with it a special obligation to the residents who depend on the facility to meet every basic human need.” Id.